Bullies Put Employer Reputation, Pocketbook at Risk

Not every bully stands 6-foot-3 and weighs in at 319 pounds, as does former Miami Dolphins player Richie Incognito. They can be the petite woman in sales support, or the skinny dude back in IT. But if they decide to harass one of your key players, they might as well be throwing a cross-body block on staff morale.

The alleged hazing of Dolphins player Jonathan Martin cost the Dolphins two key players when Martin quit and Incognito was suspended for his bad behavior. The significance of the situation, bullying experts say, is that it was so egregious it came to light. Most times, these experts agree, bullying goes on unchallenged by management or even unnoticed. The cost of this unreported bullying can be high —although not as high as if someone quits and sues the company.

How much workplace bullying occurs? One estimate by Zogby International says perhaps 35% of workers have experienced bullying at work at one time or another. The Society for Human Resource Management surveyed employers in 2012 and said that more than half reported an incident of bullying at work.

“The cost of employee bullying is substantial, as studies have shown that cowed workers tend to be less productive than their peers, and also account for high rates of absenteeism, turnover and more frequent schedule change requests, all of which add to an employer’s HR challenges and also hurt productivity,” attorney Michael J. Volpe, a partner in Venable's New York office, and Venable associate Nicholas M. Reiter wrote recently. “Additionally, employers often see their insurance premiums increase due to more workers’ compensation claims filed on behalf of the bullied employees.”

The pair said that legal claims filed against employers by victims of bullying generally cited harassment focusing on the victim’s race, disability, religion or sexual orientation.

The most common causes of action are “discrimination, harassment, retaliation, intentional infliction of emotional distress, defamation, assault, false imprisonment, negligent supervision, and negligent hiring, among others,” they wrote.

It does no good for the employer to claim ignorance of the situation, because, after all, it is up to an employer to create a safe work environment for all employees.

“In many cases, an employer’s lack of knowledge about the bullying is irrelevant because the employer may be held vicariously liable for its employee’s conduct,” is how Volpe and Reiter put it.

“For all of these reasons, employers can (and should) proactively protect themselves against the legal risks of workplace bullying,” they said. Their guidelines include:

1. Write an employment policy that uses the word bullying, defines it and prohibits it at work. “This policy should include an easily understood reporting process for employees to assert internal complaints of bullying.”

2. Make sure everyone know that no retaliation will be tolerated against someone who reports bullying. This guarantee must be in writing.

3. Ensure employees that claims of bullying will be taken seriously and investigated objectively, and the person reporting the bullying will not be identified. Confidentiality is imperative if the policy is to work.

4. Additional measures to protect your employees and your company from bullying include “conducting anti-bullying training sessions for their workforce, internal audits of bullying complaints, and background checks for potential new hires who may have a history of workplace violence, harassment, or other bullying behavior.”

Attorney Philippe Weiss of the law firm Seyfarth Shaw consults with companies and trains them on the subject of bullying. He's even had some NFL teams as clients, although he's quick to note that the Miami Dolphins were not among them.

“This [Miami] situation serves as stark reminder that high-impact training on and awareness of bullying, hazing and harassment is crucial in all work environments, whether you have a locker room or board room – or both," Weiss noted. "The key, on training, is two-fold. One: creating and delivering core messages on the impacts of bullying or hazing that participants cannot ignore. And, two: imprinting simple, powerful and effective responses to the intimidating or demeaning conduct of others (whether they are pro athletes or co-workers).”

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